Constitutional Crisis: America’s Police and Their Obsession with Civil Asset Forfeiture

“We the People of the United States, in order… to promote the GENERAL WELFARE… do ordain and establish the Constitution of the United States of America.”

Hidden in the preamble to the Constitution is the charge that the following laws and rights are designed to protect the GENERAL WELFARE of the citizens of the United States. Hence, any subsequent laws or policies enacted by the government must conform to this essential principle. However, 230 years later, a popular policing procedure known as civil asset forfeiture is destroying the original intentions of our nation’s founders.

Civil asset forfeiture allows law enforcement agencies to confiscate property that they suspect was involved in a crime. That property could include anything from cash to guns to an entire house. The basic idea hasn’t evolved much since medieval times, when the crown gave itself the power to seize property on the grounds that the property itself, not the owner, committed the crime.

Today, this policy is championed by law enforcement agencies as a powerful tool to deter crime. However, civil asset forfeiture is at its core a simple game of wealth redistribution. Anyone with a basic knowledge of economics should be able to see past the putrid rhetoric. It’s a simple analysis of structure, conduct, and performance, and it uncovers a dangerous truth: the government is stealing our stuff, and it doesn’t have to convict us of anything.

Both state and federal forfeiture laws allow law enforcement to seize suspected property through a lax legal standard known as preponderance of the evidence. Essentially, this means that if police can show that the evidence tips the scale beyond 50 percent in their favor, they can seize your property. However, to recover your items, you will have to go through a lengthy court process to prove your innocence beyond a reasonable doubt– the same standard needed to prove murder. Even to the most basic constitutional observer or School House Rock listener, it is clear such a policy does not “promote the general welfare.”

Traditionally, the main avenue for law enforcement to add to its locally funded budget was through writing traffic citations. However, as Constitutional rights to property are not enforced, policing efforts have shifted away from traffic patrol and towards more “profitable” forfeiture-ripe crimes. In fact, a recent economic study found that traffic fatalities increased 22 percent in response to relaxed forfeiture laws. Does a 22 percent increase in traffic fatalities sound beneficial to the general welfare? Or does it sound more like an attempt by law enforcement to line its own pockets?

Local governments also respond when constitutional rights are not enforced. These governments are able to engage in what economists call rent-seeking behavior – behavior that redistributes wealth instead of creating it – by reducing the funding of agencies with high forfeiture totals. Some argue that this allows local governments to allocate those funds to other positive social uses. This may be true, but take a minute to think of your own local government’s track record when it comes to appropriating government revenue. This rent-seeking activity may also limit the ability of popularly elected officials to exercise oversight over law enforcement, creating the potential for dangerously autonomous police agencies.

If you haven’t felt your constitutional rights trampled on yet, imagine yourself as a property owner facing civil forfeiture proceedings. Perhaps your rental property is seized due to suspicious activity of your tenants, or your life savings is confiscated because your luggage smelled like marijuana. Suddenly, property owners can be thrust into a strenuous legal process in which they are guilty until proven innocent. Furthermore, in addition to Constitutional implications and individual inconvenience, forfeiture proceedings may have detrimental economic consequences, as the incentive to accumulate wealth is significantly decreased – especially in poorer communities that are often targeted by police and where access to legal representation is sparse.

Civil asset forfeiture is a blatant affront to the liberties guaranteed by the United States Constitution. Its ability to allow law enforcement to become almost entirely self-funded entities is incredibly frightening, and the potential adverse economic effects of the rampant use of these procedures outweigh any probative value of deterring crime. Americans must stand up for liberty and support legislation that, at the very least, restricts law enforcement’s ability to freely use this outdated policing procedure. Hopefully, the Constitutional right to private property will one day no longer be trampled on by an overzealous Justice Department.


Follow the author on Twitter @d_bruce96


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